Deweese v. Social Security Administration

Filing 23

OPINION AND ORDER by Magistrate Judge Kimberly E. West (sjw, Chambers)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
YVONNE C. DEWEESE,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social
Security Administration,
Defendant.

Case No. CIV-13-072-KEW

OPINION AND ORDER

Plaintiff Yvonne C. Deweese (the “Claimant”) requests judicial
review of the decision of the Commissioner of the Social Security
Administration (the “Commissioner”) denying Claimant’s application
for disability benefits under the Social Security Act.

Claimant

appeals the decision of the Administrative Law Judge (“ALJ”) and
asserts that the Commissioner erred because the ALJ incorrectly
determined

that

discussed

below,

Claimant
it

is

was
the

not

disabled.

finding

of

this

For

the

Court

reasons

that

the

Commissioner’s decision should be and is REVERSED and REMANDED for
further proceedings.
Social Security Law and Standard of Review
Disability under the Social Security Act is defined as the
“inability to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment. . .”

42 U.S.C. § 423(d)(1)(A).
Security

Act

“only

if

A claimant is disabled under the Social
his

physical

or

mental

impairment

or

impairments are of such severity that he is not only unable to do
his previous work but cannot, considering his age, education, and
work experience, engage in any other kind of substantial gainful
work

which

exists

§423(d)(2)(A).

in

the

national

economy.

.

.”

42

U.S.C.

Social Security regulations implement a five-step

sequential process to evaluate a disability claim.

See, 20 C.F.R.

§§ 404.1520, 416.920.1
Judicial review of the Commissioner’s determination is limited
in scope by 42 U.S.C. § 405(g).
two inquiries:

This Court’s review is limited to

first, whether the decision was supported by

1

Step one requires the claimant to establish that he is not
engaged in substantial gainful activity, as defined by 20 C.F.R. §§
404.1510, 416.910. Step two requires that the claimant establish that
he has a medically severe impairment or combination of impairments that
significantly limit his ability to do basic work activities. 20 C.F.R.
§§ 404.1521, 416.921. If the claimant is engaged in substantial gainful
activity (step one) or if the claimant’s impairment is not medically
severe (step two), disability benefits are denied. At step three, the
claimant’s impairment is compared with certain impairments listed in 20
C.F.R. Pt. 404, Subpt. P, App. 1. A claimant suffering from a listed
impairment or impairments “medically equivalent” to a listed impairment
is determined to be disabled without further inquiry.
If not, the
evaluation proceeds to step four, where claimant must establish that he
does not retain the residual functional capacity (“RFC”) to perform his
past relevant work.
If the claimant’s step four burden is met, the
burden shifts to the Commissioner to establish at step five that work
exists in significant numbers in the national economy which the claimant
– taking into account his age, education, work experience, and RFC – can
perform. Disability benefits are denied if the Commissioner shows that
the impairment which precluded the performance of past relevant work does
not preclude alternative work. See generally, Williams v. Bowen, 844
F.2d 748, 750-51 (10th Cir. 1988).

2

substantial

evidence;

and,

standards were applied.

second,

whether

the

correct

legal

Hawkins v. Chater, 113 F.3d 1162, 1164

(10th Cir. 1997)(citation omitted). The term “substantial evidence”
has been interpreted by the United States Supreme Court to require
“more than a mere scintilla.

It means such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.”
Richardson

v.

Perales,

402

U.S.

389,

401

(1971)

(quoting

Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

The

court may not re-weigh the evidence nor substitute its discretion
for that of the agency.

Casias v. Secretary of Health & Human

Servs., 933 F.2d 799, 800 (10th Cir. 1991). Nevertheless, the court
must review the record as a whole, and the “substantiality of the
evidence must take into account whatever in the record fairly
detracts from its weight.” Universal Camera Corp. v. NLRB, 340 U.S.
474, 488 (1951); see also, Casias, 933 F.2d at 800-01.
Claimant’s Background
Claimant was born on March 24, 1964 and was 47 years old at the
time of the ALJ’s decision.
education.

Claimant completed her high school

Claimant has worked in the past as an assistant manager

at a retail store and as a cashier in a retail store.

Claimant

alleges an inability to work beginning November 15, 2009 due to
limitations resulting from left wrist, ankle, and knee problems,

3

degenerative joint disease, hypothyroidism, and Grave’s disease.
Procedural History
On

February

9,

2010,

Claimant

protectively

filed

for

disability insurance benefits under Title II (42 U.S.C. § 401, et
seq.) of the Social Security Act.

Claimant’s application was

denied initially and upon reconsideration.

On September 20, 2011,

an administrative hearing was held before Administrative Law Judge
(“ALJ”) Gene Kelly in Tulsa, Oklahoma.
held February 7, 2012.

A supplemental hearing was

By decision dated February 16, 2012, the

ALJ denied Claimant’s request for benefits.

The Appeals Council

denied review of the ALJ’s decision on December 20, 2012.

As a

result, the decision of the ALJ represents the Commissioner’s final
decision for purposes of further appeal.

20 C.F.R. §§ 404.981,

416.1481.
Decision of the Administrative Law Judge
The ALJ made his decision at step five of the sequential
evaluation.

He determined that while Claimant suffered from severe

impairments, she did not meet a listing and retained the residual
functional capacity (“RFC”) to perform light work with limitations.
Errors Alleged for Review
Claimant asserts the ALJ committed error in (1) failing to
perform a proper determination at step five; (2) failing to consider

4

the

medical

source

evidence;

and

(3)

performing

an

improper

credibility analysis.
Step Five Determination
In his decision, the ALJ found Claimant suffered from the
severe

impairments

fractures,

status

of
post

status

post

hardware

left

removal

ankle

and

from

both

left

wrist

fractures,

degenerative joint disease, neuropathy, hypothyroidism, Grave’s
disease, depression, and anxiety.

(Tr. 20).

The ALJ determined

Claimant retained the RFC to perform light work by occasionally
lifting/carrying 15 pounds, standing and/or walking for 2 hours in
an 8 hour workday at 30 minute intervals with normal breaks, and
sitting for 6 hours in an 8 hour workday with normal breaks.

She

could kneel, squat, and crawl on a limited basis, occasionally reach
overhead, and could use foot pedals.

Claimant should avoid rough

and uneven surfaces, should carry weight in her right hand, should
have easy access to a restroom, and should have limited, brief, and
cursory contact with the public.

(Tr. 22).

After consultation with a vocational expert, the ALJ found
Claimant could perform the representative jobs of hotel clerk, file
clerk, telephone sales representative, bench assembler, and touch
up screener all of which the vocational expert testified existed in
sufficient numbers nationally and regionally.

5

(Tr. 25).

The ALJ,

therefore, concluded Claimant was not disabled.

(Tr. 25-26).

Claimant contends the ALJ erroneously found she could perform
light work when his RFC assessment does not support the requirements
for that level of exertion.

Clearly, in order to perform light

work, Claimant must be able to stand and walk for 6 hours in an 8
hour

workday.

Soc.

Sec.

R.

83-10;

Soc.

Sec.

R.

96-9p.

Additionally, Claimant must be able to lift 20 pounds occasionally.
Id.

The ALJ determined Claimant can only stand/walk for 2 hours in

30 minute intervals during an 8 hour workday.

He also found

Claimant could only lift 15 pounds occasionally. He then leaves the
orphan word “frequently” in the RFC analysis without associating it
with a weight amount.

(Tr. 22).

Claimant interprets this writing

as meaning the ALJ found Claimant could lift 15 pounds both
occasionally and frequently.

This Court interprets it as an

omission on the amount of weight the ALJ found Claimant could lift
frequently.

In any event, the ALJ has made an improper RFC finding

in contravention to the regulations and failed to complete the RFC
with regard to Claimant’s weight restrictions.
shall

reconsider

his

RFC

findings

and

make

On remand, the ALJ
the

appropriate

alterations to the level of exertion he finds Claimant can perform.
Additionally, the ALJ shall reformulate his hypothetical questioning
to accommodate Claimant’s RFC after the alterations are made.

6

Consideration of the Medical Source Evidence
Claimant contends the ALJ ignored the opinions of the second
consultative

examiner

Krishnamurthi.

employed

by

Defendant,

Dr.

Subramaniam

Dr. Krishnamurthi authored a report with numerous

restrictions and findings not considered by the ALJ.

The ALJ is

required to consider all medical opinions, whether they come from
a treating physician or non-treating source.

Doyle v. Barnhart,

331 F.3d 758, 764 (10th Cir. 2003); 20 C.F.R. § 416.927(c).

He

must provide specific, legitimate reasons for rejecting any such
opinions.

The ALJ must also give consideration to several factors

in weighing any medical opinion.
(6).

The

ALJ

failed

in

Krishnamurthi’s opinions.

Id.; 20 C.F.R. § 416.927(d)(1)-

this

analysis

with

regard

to

Dr.

On remand, the ALJ shall weigh and

consider this consultative examiner’s opinion.
Claimant also contends the ALJ should have considered a letter
from Claimant’s friend with corroborated Claimant’s testimony of
limitation.

On remand, the ALJ shall give the letter any weight

that it is due.
Credibility Determination
It is well-established that “findings as to credibility should
be closely and affirmatively linked to substantial evidence and not
just a conclusion in the guise of findings.”

7

Kepler v. Chater, 68

F.3d 387, 391 (10th Cir. 1995).

“Credibility determinations are

peculiarly in the province of the finder of fact” and, as such,
will not be disturbed when supported by substantial evidence.

Id.

Factors to be considered in assessing a claimant’s credibility
include (1) the individual’s daily activities; (2) the location,
duration, frequency, and intensity of the individual’s pain or
other symptoms; (3) factors that precipitate and aggravate the
symptoms; (4) the type, dosage, effectiveness, and side effects of
any medication the individual takes or has taken to alleviate pain
or other symptoms; (5) treatment, other than medication, the
individual receives or has received for relief of pain or other
symptoms; (6) any measures other than treatment the individual uses
or has used to relieve pain or other symptoms (e.g., lying flat on
his or her back, standing for 15 to 20 minutes every hour, or
sleeping on a board); and (7) any other factors concerning the
individual's functional limitations and restrictions due to pain or
other symptoms.

Soc. Sec. R. 96-7p; 1996 WL 374186, 3.

An ALJ cannot satisfy his obligation to gauge a claimant’s
credibility by merely making conclusory findings and must give
reasons

for

the

determination

Kepler, 68 F.3d at 391.

based

upon

specific

evidence.

However, it must also be noted that the

ALJ is not required to engage in a “formalistic factor-by-factor

8

recitation of the evidence.”

Qualls v. Apfel, 206 F.3d 1368, 1372

(10th Cir. 2000).
Since

the

ALJ

must

reconsider

the

opinion

evidence

and

potentially supporting evidence concerning Claimant’s activities of
daily living, the ALJ shall also re-evaluate his credibility
findings on Claimant’s testimony.
the

other

evidence

demand

an

Should the reconsideration of

alteration

of

his

findings

on

credibility, the ALJ shall reassess Claimant’s testimony concerning
functional limitations.
Conclusion
The

decision

of

the

Commissioner

is

not

supported

by

substantial evidence and the correct legal standards were not
applied. Therefore, this Court finds, in accordance with the fourth
sentence of 42 U.S.C. § 405(g), the ruling of the Commissioner of
Social Security Administration should be and is

REVERSED and the

matter REMANDED for further proceedings consistent with this Opinion
and Order.
IT IS SO ORDERED this 30th day of September, 2014.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

9